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Court urged to reconsider law around stripping voting rights from some expats

Members of parliament are set to debate a proposed overhaul of the Elections Act. (Chris Young / THE CANADIAN PRESS)

Diana Mehta, The Canadian Press
Published Monday, February 3, 2014 6:06AM EST
Last Updated Monday, February 3, 2014 4:16PM EST

TORONTO -- An Ontario judge was urged Monday to consider whether the historical reasoning for a law which strips some expatriates of their voting rights makes sense in today's world.

The request came from a lawyer for two Canadians who are challenging the rule which affects citizens living abroad for more than five years.

"The most critical thing is to look at whether these provisions are constitutional now, considering the current context of globalization and the way people travel around the world and are able to stay connected," said Shaun O'Brien.

"Lots of things existed in voting legislation that we no longer accept...The fact that historically the nature of our system requires residence doesn't meant that residence is required now."

At the heart of the case being heard in Ontario Superior Court this week are the experiences of Gillian Frank and Jamie Duong.

Both men moved to the U.S. for higher education and stayed on as their studies led to jobs, but both plan to move back home as soon as they find appropriate employment in their fields.

The pair were shocked to learn in 2011 that they couldn't cast a ballot in the last federal election due to the five-year rule.

They launched a legal challenge against the federal government two years ago arguing the rule in the Canada Elections Act is arbitrary, unreasonable and should be struck down as unconstitutional.

Their lawyer argued Monday that while residency is a mechanism to organize Canada's voting structure, it should not curtail the right to vote.

"Most people voting will be residents in Canada and there's no issue and this isn't changing that," O'Brien explained. "The point is that if you're not resident, you're still entitled to have your voting rights recognized."

O'Brien also pointed out that Canada has typically been a leader in voting rights, giving the vote to prisoners and the mentally disabled, unlike some other countries.

"We've interpreted our Charter rights very strongly to say these rights are of fundamental importance and so the court should follow that," she said.

The federal government has argued the current law helps strike a balance between the democratic rights of Canadians while ensuring sufficient ties exist between a citizen and Canada.

But O'Brien and her clients disagree with that reasoning.

"These people care about Canada not in just an abstract or sentimental way but also in a practical or real way," said O'Brien. "They will be impacted directly by the direction the country is moving in."

The five-year rule was imposed in 1993, but wasn't widely enforced by Elections Canada until 2007.

That helps show that the country already knows what will happen if the law being challenged is struck down, O'Brien argued.

Before 2007, the five-year clock would reset for expats who returned even for short visits. Now, they have to "resume residency" before leaving again to regain their right to vote abroad.

Some long-term expats, such as members of the Armed Forces and diplomats, are exempt.

The notion of capping voting rights at five years specifically was targeted at Monday's hearings.

"What's magic in five years," asked O'Brien. "Why do we have this line in the sand that earlier you're connected and after you're not."

O'Brien added that contrary to the government's suggestion that allowing all expatriates to vote would alter Canada's electoral landscape, those who actually take the pains to cast ballots from abroad aren't numerous enough to be cause for such concern.

The judge presiding over the case also noted Monday that there were more votes cast by prisoners in Canada than by citizens who lived abroad.

For the Montreal-raised Duong, whose parents were at Monday's hearing, the suggestion that expatriates don't have enough of a stake in Canada didn't make sense.

"I care very much about my niece's education, I care very much about my parents' health care, I care about all these issues," he said outside court.

"It's so important that Canadian citizens regardless of where they call home be given the right to vote. It is a fundamental part of our charter, it's a fundamental part of our democracy."

Meanwhile, Frank, a Toronto native who served in the Canadian military before moving to the U.S. to get his PhD, took issue with the questioning of his ties to Canada.

"We don't measure it for people who are residing here, we shouldn't measure it for people who are residing abroad," he said. "It's intangible. How can you establish who's connected and who is disconnected."

He added that expatriates who go through the procedures required to vote from abroad are demonstrating the strength of their links to Canada, yet seem to be rejected by their country.

"Disenfranchising citizens and disabling them from voting basically tells them that they're second class," he said. "It's an affront to my dignity and to my citizenship."